The North Carolina Court of Appeals ruled that a trial court did not err by admitting expert testimony from a drug recognition expert (DRE) in an impaired driving trial. Usually, a DRE provides probable cause to justify an arrest, while a subsequent blood test establishes that the defendant had consumed a controlled substance.

In most cases, a jury infers impairment from drug consumption, bad driving, and other indicia of intoxication. Whether a DRE should be allowed to offer an expert opinion as to impairment is, at best, a controversial issue. When a court allows a DRE to testify, defense attorneys should be prepared to counter the testimony with experts of their own.

Facts of the Case

Stacie Fincher uses prescription medications to control her bipolar disorder. During the early morning hours of February 10, 2015, she took another prescription medication, Xanax, to help her sleep.

Stacie drove to her doctor’s office for a follow-up examination related to her ankle surgery. She then drove to a pharmacy to pick up a prescription. She was in a fast food drive-thru lane when her foot slipped off the brake and she rear-ended another car.

Two Asheville police officers who responded to the scene testified (as officers invariably do when they make an impaired driving arrest) that Stacie had glassy eyes and slurred speech. Stacie admitted that she had taken Xanax several hours earlier.

One of the officers administered field sobriety tests to Stacie, including the Horizontal Gaze Nystagmus (HGN) test. He determined that Stacie had the maximum number of points on that test, which is supposedly a sign that the test subject has a prohibited blood alcohol concentration.

Relying on shaky science, the National Highway Traffic Safety Administration (NHTSA) “validated” the HGN as a means of determining probable cause that a driver’s blood alcohol concentration exceeds 0.08%. A notable fact overlooked by the court of appeals is that the NHTSA developed the HGN to detect a prohibited blood alcohol concentration, not to detect impairment from drug use.

Since Stacie was wearing an ankle boot, the officer did not have her perform the other standardized field sobriety tests, which are only valid if an individual has the ability to walk normally regardless of alcohol or drug ingestion. The officer administered a preliminary breath test and found that Stacie had consumed no alcohol.

The officer arrested Stacie for driving under the influence of drugs based on her glassy eyes, slurred speech, the HGN test, her admission to taking Xanax, and the fact that she had been in an accident. She agreed to have her blood drawn.

DRE Evidence

The arresting officer then had Officer Scott Fry, a certified DRE, perform a twelve-step evaluation of Stacie. A DRE is trained and certified by the police. A DRE completes a course that teaches the officer to administer a twelve-step drug evaluation and classification protocol that theoretically determines whether a suspect is impaired by the consumption of a drug, and to classify the drug that caused the impairment.

At Stacie’s trial, Fry testified that Stacie’s blood contained “measurable amounts” of Xanax. The fact that a “measurable amount” of a drug is present in blood, however, does not establish that a sufficient quantity of the drug was consumed to impair safe driving.

Fry also testified about his conclusions as a DRE. The defense apparently offered no expert testimony to challenge the scientific validity of drug recognition evidence.

The court instructed the jury that Xanax is an “impairing substance,” although whether an “impairing substance” has actually caused an impairment is a different question. The jury found Stacie guilty of DWI.

Appellate Opinion

In a cursory opinion, the court of appeals concluded that the DRE’s testimony was admissible, and that the evidence was sufficient to prove that Stacie was impaired by her consumption of Xanax. The opinion is not a model of judicial reasoning.

The court noted that Stacie’s eyes were red and glassy and that her speech was slurred, but pointed to no evidence that Xanax causes those side effects. The court cited Stacie’s performance on the HGN test but failed to acknowledge that no peer-reviewed scientific literature validates the HGN as evidence of impairment resulting from the consumption of Xanax.

The court also noted that Stacie rear-ended another car, but hundreds of people are involved in rear-end accidents every day, most of whom are not impaired. That leaves the DRE’s testimony as the critical evidence of Stacie’s guilt.

North Carolina law generally follows the Daubert standard, but in an apparent effort to make it easier for prosecutors to obtain DWI convictions, North Carolina does not require the same standard of reliability for DRE evidence. The state legislature apparently concluded that protecting corporations from money damages was more important than protecting individuals accused of crime from imprisonment.

A North Carolina statute allows a “witness who has received training and holds a current certification as a Drug Recognition Expert” to offer an opinion “whether the person was under the influence of one or more impairing substances, and the category of such impairing substance or substances.” The “category” into which Xanax falls is “central nervous system (CNS) depressant.”

A study shows that DRE-trained officers are able to correctly identify a test subject as being under the influence of a CNS depressant only 42% of the time. It is startling that the North Carolina legislature concluded that being right less than half the time is good enough for North Carolina criminal cases.

Since the DRE who examined Stacie had a certificate, the court determined that his testimony was properly admitted. Whether his methodology was reliable, the court decided, was a question that the North Carolina legislature had already determined.

A DRE will always be a police officer testifying for the prosecution. North Carolina’s DRE law is plainly intended to allows officers who pass a class to help prosecutors obtain convictions by posing as experts, whether or not their testimony has any scientific validity.

The Importance of Defense Experts

Courts that apply more rigorous standards to DRE opinions often come to a different conclusion. For example, a Maryland trial court determined that DRE evidence is inadmissible under Maryland’s Frye standard because the methodology employed by drug recognition experts is “not generally accepted in the fields of medicine including specifically pharmacology, neurology, ophthalmology and psychiatry.”

The court concluded that acceptance of DRE evidence by NHTSA and the International Association of Chiefs of Police (IACP) should not be conflated with acceptance by a scientific community. The court noted that “NHTSA and the IACP are long-time proponents of the DRE program and have a vested interest in its acceptance and use.” The court probably realized that NHTSA has a long history of developing field tests that purport to be scientific without validating them using peer-reviewed, independent (not funded by NHTSA) scientific analysis under the conditions in which the field tests are actually employed.

The court examined four independent, double-blind studies that “conclusively show” that a DRE’s predictions of impairment based on the DRE protocol are “no better than chance.” Since no peer-reviewed studies accepted the legitimacy of the DRE protocol, and since it is so obviously biased to favor the police in making arrests, the court declined to admit DRE testimony as evidence of guilt.

Even when courts allow a police officer to testify as a DRE, defense attorneys have the opportunity to challenge that testimony. Medical experts can explain why no medical professional would make a judgment of impairment based on the DRE protocol. Experts in scientific methodology can explain why the DRE protocol should not be accepted as valid. A vigorous cross-examination of the DRE may be sufficient, but when a defendant can afford to hire an expert, the opportunity to raise a reasonable doubt about the DRE testimony increases exponentially.

Junk science has no place in a criminal trial. Whenever a police officer purports to give scientific testimony, it is critical for the defense to retain experts who can educate the jury about the difference between scientific methods that have been independently validated and result-oriented junk science that NHTSA or police agencies have developed to make it easier for the police to make arrests.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.